Nand Kishore Seth vs Addl. Commissioner Bareily ...
2013 Latest Caselaw 2114 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED on 20.3.2013
 
                                                                                                  DELIVERED on 15.5.2013
 

 
Case :- WRIT - C No. - 2063 of 2006
 

 
Petitioner :- Nand Kishore Seth
 
Respondent :- Addl. Commissioner Bareily Mandal Bareilly & Others
 
Petitioner Counsel :- Arun Kumar Verma,B.B.Jauhari
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

This writ petition has been directed against the order dated 30.7.2005 passed by the Additional Commissioner, Bareilly Mandal, Bareilly and order dated 28.2.1998 passed by the Prescribed Authority (Ceiling) Shahjahanpur.

The facts of the case as narrated in the writ petition are that notice under section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act, 1960(hereinafter referred to as the Act) was served upon the petitioner along with one Shri Laxman Swaroop Seth. By order dated 26.7.1976 passed by the Prescribed Authority(Ceiling) Sadar, 1.24 acres land of the petitioner and 1.33 acres (irrigated) land of the share of Shri Laxman Swaroop Seth in the joint holdings possessed by them was declared surplus. Both the tenure holders separately assailed the order of the Prescribed Authority by filing separate appeal under section 13 of the Act. Both the appeals were decided together by judgment and order dated 18.12.1976 passed in Civil Appeal no. 261 of 1976(Ceiling)(Shri Nand Kishore Seth Vs. State of U.P.).The surplus area in the share of the petitioner Nand Kishore Seth was declared 0.28 acres(irrigated). After proceedings for ceiling initiated against the petitioner came to an end by judgment and order dated 18.12.1976 passed by the appellate authority, second notice under section 10 (2) of the Act was issued on 14.10.1996. Copy of the notice has been annexed as annexure S.A.-2 to the supplementary affidavit filed on 1.10.2006.The assertions in the notice are to the effect that details with regard to the surplus land possessed by the petitioner on 8.6.1973 has been prepared under section 10 (1) of the Act. Petitioner was further required to explain as to why said details be not treated as correct. He was further required to file his objection to the said notice. Petitioner filed his objection on 14.7.1997 and stated therein that he has no land beyond ceiling limit and after decision dated 18.7.1976 in appeal no. 261 of 1976 filed by the petitioner, there is no change in the ceiling limit of the petitioner. He had not purchased or acquired any land thereafter. The petitioner further got his statement recorded on 17.9.1997 and asserted that he does not hold land beyond ceiling limit after proceedings with regard to surplus land had become final. The fresh proceedings initiated against the petitioner by way of notice dated 14.10.1996 is illegal.

The prescribed authority registered a case no.319 and framed four issues. Issue no. 2 whether petitioner had land beyond ceiling limit, Issue no. 3 whether the proceedings are barred by res judicata and issue no. 4 was as to whether any land of the petitioner is to be declared surplus. Issues no. 2,3 and 4 were decided together and the prescribed authority though recorded a finding that earlier proceedings under the ceiling Act were initiated against the petitioner. However decided the issue of res judicata against the petitioner on the ground that copy of the order passed in the previous proceedings were not filed by him and petitioner had failed to prove that situation has not changed since after the judgment and order dated 18.12.1976. The issues were decided on the basis of statement of Naib Tehasildar(ceiling)recorded and the Prescribed authority did not give any independent finding of its own.

The order was challenged in the appeal which was registered as appeal no. 17/98. The Appellate authority, however, proceeded to examine the case on merit and on issue of res judicata it has recorded that certified copy of the order passed by the court below in earlier proceedings were not produced, therefore, it can not be ascertained that land in question in both the proceedings are same. However, it further concluded that order passed by the prescribed authority is incorrect to the extent that plot no. 134 was declared surplus though it was sold by the appellant/petitioner in the year 1971 and is in possession of purchaser. It has further recorded that land already sold by the petitioner could not have been declared surplus. The appeal was dismissed and the matter was remanded back to the prescribed authority to determine the surplus land under section 12-A(D) of the Act after excluding plot no. 134 with the direction that after determination of surplus land, possession of the same should be delivered to the State Government.

Learned counsel for the petitioner raises legal question before this court that once the ceiling proceedings initiated against him were finalised by order dated 18.7.1976,the subsequent notice dated 14.10.1996 under section 10(2) of the Act is illegal.

Learned counsel for the petitioner contended that no notice whatsoever could have been issued under section 10(2) of the Act for reopening the ceiling proceedings against the petitioner. He drew attention of the court to section 13 and 13-A of the Act and submits that once appeal is disposed of by the appellate court the decision thereon shall be final and conclusive and be not questioned in any of Court of law. Redetermination of surplus land in certain cases as provided under section 13-A of the Act is limited to the extent to rectify any mistake apparent on the face of the record within a period of two years from the date of the notification issued under section 14(4) of the Act. Ceiling proceedings in the present case culminated by order dated 18.12.76 passed by the appellate authority, land declared as surplus was duly notified in the Official gazette in pursuance of section 14(8) of the Act.

He further submits that only course open for the authorities concerned to issue notice under section 29/30 of the Act that too on the ground of any subsequent acquisition of land by the petitioner mentioned in section 29/30 of the Act. The cut off date for issuance of notice under section 29/30 of the Act cannot be 8.6.1973. The cut off date in the notice issued under section 29/30 of the Act would be the date on which the tenure holder subsequently acquired the land due to any of the reason mentioned therein.

Having heard learned counsel for the parties and perused the record.

Case of the petitioner is that he had not acquired any land after 18.12.1976 nor he is in possession of excess land. Moreover notice dated 14.10.1997 itself indicates that cut off date was mentioned therein is 8.6.1973. The Prescribed Authority as well as appellate authority have proceeded to decide the case afresh in the proceedings pursuant to the notice under section 10(2) of the Act. The issue of res judicata raised by the petitioner was not adverted to and both the authorities below had proceeded on the ground that petitioner has failed to show that land in dispute is the same land with respect of which proceedings were concluded earlier. This approach of the prescribed authority as well as appellate authority shows total non-application of mind and non consideration of provision of the Act.

A combined reading of sections 13, 13-A, 14, 29 and30 of the Act makes it clear that provisions regarding redetermination of ceiling area of tenure holders is clear,once the ceiling areas of tenure holders is determined by issuing notice under section 10 (1) of the Act, it can only be redetermined by issuing notice under section 29/30 of the Act on the grounds mentioned in the said provision. The condition as laid down under section 29/30 of the Act of which notice could have been issued to the petitioner, if he has come to hold any land under a decree or order of any court, or as a result of succession or transfer or by prescription in consequence of adverse possession after 8.6.1973 and the land so acquired by him together with the land earlier held by him exceeds the ceiling limit.

On the other hand, in the present case subsequent notice issued under section 10(2) of the Act dated 14.10.1996 i.e. after period of almost 20 years after culmination of earlier proceedings itself is bad as authorities below proceeded to determine the land on 8.6.1973.

Moreover there is no finding in the order passed by the prescribed authority as also the appellate authority with regard to any of ingredients and circumstances enumerated under section 29 of the Act. Reference may be taken in decision in 2007 (4) AWC 3789(Noorullah Vs. Additional Commissioner, Meerut Division, Meerut and others), 2005(3) AWC 2565 (Indra Pal Mishra alias Raju Vs. Special Judge(E.C. Act), Banda and others), 2003 (3) AWC 1876 (Udai Raj Vs. State of U.P. and others) and 1979 ALL.L.J. 43 ( Bija Vs. State of U.P. and others ) wherein this court held that after previous ceiling proceedings had culminated by the order of the ceiling authority determining the surplus areas of the petitioner, ceiling authority cannot ignore the order passed by them and proceed by giving second notice under section 10(2) of the Act. The bar against the res judicata as provided under section 38 (B) of the Act will be only after enforcement of the said section. Section 38 (B) provides that any order passed before the enforcement of said section shall be ignored and shall have no effect upon the rights of the parties. Section 38-B has been inserted by the U.P. Act No. 20 of 1976 with effect from 10th October, 1975. In the present case order dated 18.6.1976 was passed by the appellate authority. Thus the said order operates as res-judicata between the parties.

For the reasons given above, the orders passed by the ceiling authorities cannot be sustained on any count. The entire proceedings reinitiated on the basis of the second notice under section 10(2) were, therefore, vitiated. The impugned orders being illegal are hereby quashed. The writ petition succeeds and is allowed.

It shall however be open for the authorities to proceed in accordance with the provisions of Act by issuing fresh notice under section 29/30 of the Act, if any of the conditions mentioned therein exist.

Dated:15.5.2013

Aks.